SafeWork NSW v Walgett Shire Council

[2023] NSWDC 70

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Walgett Shire Council [2023] NSWDC 70

Hearing dates:

3 February 2023

Date of orders:

24 March 2023

Decision date:

24 March 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Walgett Shire Council is convicted.

2   The appropriate fine is one of $55,000 that will be reduced by 10% to reflect the plea of guilty.

3   I impose a fine of $50,000.

4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

5   I make a Work Health and Safety Project Order pursuant to s 238 of the Act in terms of

[106].

6   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty – Work Health and Safety Project Order

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999.

Fines Act 1996

Local Government Act 1993

Work Health and Safety Act 2011

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

Texts Cited:

RMS Workers on Foot Training – Trainer’s Guide

Safe Work Method Statement – Activity Working with Moving Plant including Work on Foot

Safe Work Method Statement – Activity Traffic Control

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Walgett Shire Council (Defendant)

Representation:

Counsel:
I Taylor SC/C Magee (Prosecutor)
M Shume/E Aitken (Defendant)

Solicitors:
Legal, Corporate Services, Department of Customer Service (Prosecutor)
Worldsafe Legal (Defendant)

File Number(s):

20/181902

Publication restriction:

None

Judgment

Introduction

1. Walgett Shire Council (WSC) appears for sentence after pleading guilty to an offence under s 33 Work Health and Safety Act 2011 (the Act), that as a person with a health and safety duty under s 19(1) of the Act that it failed to comply with that duty.

2. The maximum penalty for the offence is a fine of $500,000.

Facts

3. The parties tendered an Agreed Statement of Facts that can be summarised as follows.

4. WSC is a body politic of the State of New South Wales constituted under the Local Government Act 1993. WSC is a local council located in north-west New South Wales. It’s business or undertaking included undertaking road maintenance work on several State roads including the Kamilaroi Highway pursuant to maintenance contracts with the Roads and Maritime Service of New South Wales (RMS).

5. WSC was engaged by RMS as the principal contractor to carry out works including shoulder widening works on sections of the Kamilaroi Highway in the vicinity of Cryon and Walgett known as the Yallambie Pavement Rehab Road Project (the Project).

6. On 21 June 2018 roadworks were being undertaken by WSC as part of the Project on a section of the Kamilaroi Highway between Cryon and Walgett (the Work Site). The Work Site was located between two sets of portable traffic lights; the easternmost set of portable traffic lights (those closest to Cryon) were located 1.5 kms west of Yarraldool Road.

7. At all material times the RMS retained overarching responsibility for all works constructed on State roads including the Project. RMS contracted out works relating to the Project to WSC. WSC were contracted to undertake the works pursuant to the terms of the Road Maintenance Council Contract (RMCC) dated 25 September 2008. From time to time, the Contract was amended by relevant RMS specifications.

8. The shoulder widening work was undertaken by closing one lane of the Kamilaroi Highway, being the side of the road on which work was being completed and diverting traffic to use one lane of the Highway, one direction at a time.

9. On 21 June 2018, the lane that was open for use by vehicular traffic was the west bound lane travelling to Walgett (the southern side of the road). The east bound lane travelling to Cryon (the northern side of the road) was closed as this was the side of the road that was being worked on. The lane opened to traffic was to change over after the completion of the work on the northern side of the road (the Switch).

10. On 21 June 2018 portable traffic lights, traffic control signs, cones and barrier boards were set up at the Work Site to control the movement of the vehicular traffic through the section of the Kamilaroi Highway while work was being performed in accordance with the Traffic Control Plan (the TCP).

11. In the afternoon of 21 June 2018 work was completed on the northern side of the road and arrangements were made for the Switch. The Switch required the movement of the traffic control signs, barrier boards and cones from one side of the road to the other. This required workers to do this work on foot in the area where the portable traffic lights were operating.

12. The Team Leader and Site Marshall at the Work Site, Darren Richards, was operating a grader. He directed Shane Hawthorne, a roller operator, to manually operate the set of portable traffic lights at the eastern end of the Work Site to display red lights at both ends of the Work Site, so that the Switch could be effected.

13. Mr Hawthorne parked the Pad Foot Roller on the southern side of the road directly south of, and adjacent to, the portable traffic lights. The Pad Foot Roller was equipped with a two-way radio fitted in the cabin. Mr Hawthorne was in contact with various other workers on the radio. He proceeded to allow vehicles to pass through the Work Site before changing the portable traffic lights at both ends to red.

14. At about the same time, Mr Richards communicated over the radio that he would turn the grader around to start grading the opposite side of the road.

15. Mr Hawthorne was observed standing between the Pad Foot Roller and the traffic lights.

16. Mr Richards instructed the operator of the Smooth Drum Roller, Lewis Edwards, by the two-way radio, to move the traffic control cones in the taper area and the barrier boards from the northern side of the road to the southern side of the road at the western end of the Work Site.

17. Mr Richards proceeded to turn the grader around and as he did so, instructed Mr Hawthorne by the two-way radio to move the traffic control cones in the taper area and barrier boards to the southern side of the road at the eastern end of the Work Site. This would have required Mr Hawthorne to walk in areas where vehicular traffic could move through the Work Site as well as areas in which the Workers on Foot Plan (WOFP), if it had been implemented, would have been designated as outside a safe zone, namely a zone where mobile plant might be operating.

18. After Mr Hawthorne was directed to perform the Switch by Mr Richards, Mr Richards drove the grader in a westerly direction through an area of the roadway where the Switch was required to be performed by Mr Hawthorne. In particular, he turned the grader in an area opposite to the portable traffic lights where Mr Hawthorne was standing, drove across the road into an area where Mr Hawthorn was required to move the barrier boards, before driving west onto the southern side of the road.

19. During the Switch, WSC did not require Mr Richards as Site Marshall to bring the grader to a stop so that Mr Richards could singularly perform his duties as Site Marshall.

20. In order to perform the Switch, Mr Hawthorne activated the traffic lights to stop vehicular traffic entering the Work Site. Mr Hawthorne was then required to walk from between the Pad Foot Roller and the portable traffic lights and across the southern lane of the road into the northern lane where the taper and barrier boards were set up.

21. During the Switch, WSC did not require a person to be appointed to perform the role of a “spotter”, that being a person whose sole responsibility was to supervise workers on foot and warn them of potential dangers and hazards associated with activities being undertaken by mobile plant and/or vehicular traffic at a work site.

22. WSC had in place a number of safety documents including the TCP and the WOFP. WSC used a Safe Work Method Statement (SWMS) for the Project. WSC had also conducted a number of site specific risk assessments undertaken periodically for its road construction projects.

23. WSC was also required to complete a “Traffic Control at Work Sites Safety Inspection Checklist” by the RMS on a monthly basis.

24. The RMS had developed systems relating to workers undertaking work on foot on a road construction sites. This included the document entitled “RMS Workers on Foot Training – Trainer’s Guide” (RMS Trainer’s Guide), a copy of which had been provided to WSC.

25. RMS required, prior to the commencement of work, that WSC submit a project specific plan for review by RMS. RMS personnel were appointed to monitor and verify the activities of service providers including WSC. RMS had in place a system that involved its officers attending the Work Site for various purposes including to ensure that WSC had in place appropriate measures to control the risk.

26. WSC failed to develop, implement or enforce an adequate site specific safe system of work for workers, working on foot, in the proximity of moving plant at the Work Site as at 21 June 2018.

27. The WOFP policy contained a generic diagram that identified zones but without specifying their size or distances between them. A site specific version of the plan was not developed to establish the size and locations of each of the different zones and pedestrian walkways that applied at the Work Site.

28. No site specific sketch of the WOFP was prepared. None of the workers understood that there was a requirement to sketch the WOFP for each activity or that the relevant areas should be delineated through devices such as different coloured traffic cones. The relevant work zones, including turn-around bays within the Work Site, were not demarcated as required by the WOFP. While the workers were aware on 21 June 2018 of the existence of the WOFP, they were not aware of the exact location of each zone. WSC did not require these zones to be marked by different coloured cones.

29. Neither the Project SWMS nor WOFP provided a clear direction that there was to be no mobile plant or vehicle traffic movement in the Work Site while workers were on foot inside that area moving traffic cones, barrier boards and visual markers, including those delineating the WOFP zones.

30. WSC did not ensure on 21 June 2018 that, at all times when a worker may be on foot in an area where plant or vehicles could travel, another worker was designated as the Site Marshall to co-ordinate and direct the safe interaction of workers and mobile plant or vehicles at the Work Site. This being someone who was not tasked with driving plant at the same time as they were conducting Site Marshall duties.

31. The RMS Trainer’s Guide was not used by WSC to customise a training package for WSC workers. WSC did not provide its workers with this training package prior to 21 June 2018. WSC did not provide its workers with the stand-alone specific Workers on Foot Training Course prior to 21 June 2018.

32. The workers performing work at the Work Site on 21 June 2018 had a variable understanding of what WSC’s policy and procedures required when they were working on foot at the Work Site.

33. WSC did not appoint a worker or workers to the role of “spotter” to watch and warn others of the potential dangers and hazards associated with activities being undertaken by mobile plant or vehicles at the Work Site, in particular, when workers were performing the Switch.

34. The responsibility of spotters had been previously identified by WSC as a work health and safety issue to be discussed with workers at toolbox talks and in fact was discussed on four occasions in the month leading up to the incident.

35. The SWMS identified the hazard posed by vehicles travelling through the Work Site. The SWMS did not identify the Switch as giving rise to a risk that workers might be struck by mobile plant or vehicles while undertaking that activity. Similarly, the Ensite Development Plan did not identify the hazards created by performing the duties involved in the Switch.

36. WSC developed a number of Safe Work Method Statements after the breach of its duty including one for “traffic control” and one for “working with moving plant”. On 23 April 2019, WSC issued a SWMS “Safe Work Method Statement – Activity Working with Moving Plant including Work on Foot”. On 24 April 2019 WSC issued a SWMS “Safe Work Method Statement – Activity Traffic Control”.

Offender’s Case on Sentence

37. WSC offender tendered the following documents:

1. Enforceable Undertaking entered into by Transport for New South Wales (TfNSW) with SafeWork NSW;

2. letter in response to s 155 Notice provided by Gregory Ingham on behalf of WSC;

3. excerpt from the Local Government Focus newspaper titled ‘Workforce Worries’ dated 3 June 2019;

4. WSC Drug and Alcohol Policy adopted 1 May 2018;

5. General Meeting and Outdoor Staff Meeting Notes dated 9 May 2019;

6. Plant Daily Inspection Fault Report dated 4 August 2019;

7. WSC Safe Operating Procedures document for Graders dated 6 August 2019;

8. WSC plant operator trainee logbook;

9. WSC WHS manual;

10. WSC Employees and Contractors Induction Package for Reconstruction and Sealing of Gundabloui Road;

11. TfNSW Workers on Foot Training Participant’s Handbook, February 2016;

12. Safe Work Method Statements dated 24 April 2019;

13. RTA Traffic Control at Work Sites Location Checklist for Gundabloui Road dated 15 July 2019;

14. WSC Toolbox Meeting Records from 15 July 2019 to 18 July 2019;

15. WSC Plant Pre-Start Inspection checklist;

16. Affidavit of Greg Alan Wear dated 7 December 2022;

17. Affidavit of Michael John Urquhart dated 7 December 2022; and

18. Affidavit of Michael John Urquhart dated 27 January 2023.

38. The following is a precis of the evidence relied upon by the offender.

39. The Walgett Local Government Area (LGA) is located in northwest New South Wales and is one of the largest and most isolated LGAs in the State. Over 6,000 people reside in the Walgett LGA. Thirty percent of the LGA’s residents identify as Aboriginal and Torres Strait Islander.

40. The Walgett LGA is regarded as one of the most disadvantaged LGAs in NSW, due to the geographic isolation of its residents from services and opportunities otherwise found in regional centres and metropolitan areas, the high proportion of Aboriginal and Torres Strait Islander residents, and the reliance of residents upon agricultural industries which have been significantly affected by severe drought and flooding in recent years.

Systems of work prior to the breach

41. The Project was undertaken by WSC pursuant to the RMCC, an overarching document that governed the relationship between WSC and RMS. WSC was also required to undertake project-specific documentation for all work it completed for the RMS and the RMS had to approve the work before the work could commence. WSC submitted the following safety documentation in respect of the Project:

1. The Yallambie Pavement Rehab Project – Project Specific Plan (Construction) dated 18 September 2017.

2. SWMS for the Project.

3. Development EnSite Plan, which was a risk assessment developed by the RTA and completed by WSC.

4. Confirmation of Project specific inductions provided to workers on the Project.

42. Whilst there was no specific system of work in place for performance of the Switch, the TCP and WOFP both applied to the Switch and ran in parallel.

43. In addition, WSC had the following safety documentation and procedures:

1. WSC Safety Management Plan;

2. Plant-specific risk assessments for each piece of mobile plant;

3. Periodic site-specific risk assessments;

4. “Plant Daily Inspection Fault Reports” which were required to be completed on a daily basis;

5. “Site Safety Checklist” which was to be completed on a daily basis by the Site Supervisor; and

6. The “Incident Report Form” which was required to be completed following an incident.

44. WSC employed at the time of the breach, and continues to employ, a full-time Work Health and Safety Officer, whose responsibilities include:

1. providing safety training to WSC employees and contractors;

2. conducting risk assessments for work to be performed by WSC;

3. maintaining WSC’s safety systems and conducting safety audits; and

4. investigating safety incidents.

45. Other than this matter, WSC does not have historical or current investigations by SafeWork NSW.

46. WSC has, since 2008, engaged Mr Wear to provide road safety training for its workers. Mr Wear’s affidavit regarding the training he has provided to WSC workers and the advice he has provided WSC regarding its safety measures since the breach of duty is summarised below.

The affidavit of Mr Wear

47. WSC had a longstanding arrangement with Mr Wear, a road safety training provider and consultant, who would provide training to WSC’s workers for road maintenance and construction work. Mr Wear provided training to WSC’s workers for road maintenance and construction work on an intermittent basis from 19 November 2008 to 15 February 2018, although in 2016 and 2017 it was provided by Mr Wear’s colleague, Ben Weir.

48. Mr Wear’s traffic control and management training for WSC covered TCPs and the work practices approved by TfNSW for the safe management and control of traffic, including how to safely complete “traffic management tasks” prescribed by the RTA’s Traffic Control at Work Sites Manual (TCAWS Manual).

49. Mr Wear’s training incorporated competency assessments which would allow WSC’s workers to obtain the requisite RMS qualifications for undertaking traffic control work.

50. Mr Wear determines the competency of participants in his training sessions through theoretical and practical assessments. Theoretical assessments are completed by participants at the conclusion of the training sessions. Practical assessments include exercises like completing a risk assessment for a worksite, and setting up, working and shutting down a worksite in accordance with a specific TCP. Where relevant, the risk assessment will include consideration of risk control measures and how the set-up of traffic control devices can be undertaken within the requirements of the TCP. Further, during the practical assessment, a toolbox talk is conducted by reference to the SWMS and work procedures. A worksite on a live road is set up consistent with the risk assessment and the TCP, and the participants implement traffic management and control on a live road.

51. When delivering training, Mr Wear always refers to the relevant SWMS.

Training provided by Mr Wear on 12-15 February 2018

52. Between 12–15 February 2018, Mr Wear provided training to WSC workers. Workers completing the training were required to undertake theoretical and practical assessments. Mr Wear utilised materials provided by Admire Workplace Safety which addressed the standard content required to obtain the following competencies:

1. “RIIS00044 – Work Zone Traffic Control – Traffic Controller Skill Set”.

2. “RIISS00041 – Work Zone Traffic Control – Implement Traffic Control Guidance Plan Skill Set” (Blue and Yellow Cards).

53. This material incorporated the following units:

1. RIIWHS201D – Work safely and follow WHS policies and procedures.

2. RIICOM201D – Communicate in the workplace.

3. RIIWHS302D – Implement traffic management plan.

4. RIIWHS205D – Control traffic with a stop-slow bat.

54. The training provided by Mr Wear on this date was both for employees who were obtaining competencies for the first time, and for employees undertaking refresher training.

55. Mr Wear also provided training regarding workers on foot during these sessions. Mr Wear explained the different zones that apply when working on foot and explained shared zones, no-go zones and the parking area. He did this by reference to the TCP and WOFP. He provided this training after it was raised by WSC employees during the session.

Recent engagement by WSC

56. Mr Wear was engaged in November 2022 to review WSC’s system of work for the Switch. In accordance with Mr Wear’s advice, the following measures have been introduced:

1. Use of a spotter to identify and warn of traffic and mobile plant that might enter the Switch area during the Switch.

2. The Team Leader will singularly perform the role of site marshal during the performance of the Switch, to ensure mobile plant is parked before the Switch is performed.

3. Preparation of a Switch Procedure, Switch Plans, Switch Checklist, and a Switch SWMS which shows different zones and coloured cones for the Switch area and ensures that no vehicles or mobile plant are to be present in the Switch area when the Switch is being performed.

57. Mr Wear was, at the time of making his affidavit, scheduled to provide instruction and training to WSC work crews on Switch plans and procedures on 30 January 2023.

The breach

58. WSC apologised for its breach of the Work Health and Safety Act 2011 (NSW). It has made a number of changes to its systems of work, outlined below.

Changes to the systems of work after the breach

59. Since the breach, WSC has implemented a range of safety measures.

60. After the breach, WSC provided further training to its road workers by reference to the TfNSW Workers on Foot Training Package. All new road workers are required to complete this training and all road workers are required to undertake refresher training annually.

61. WSC has established a mobile office that enables the WHS Officer to engage with the outdoor workforce on site. The WHS Officer provides on-site advice and safety training and ensures that all workers comply with legislative safety requirements and that work sites are set up and worked in safely.

62. An “Induction Package” has been prepared for Employees and Contractors on the Gundabloui Road Project. This is a site-specific induction package which outlines the on-site fitness requirements, project supervision and contacts, safety equipment, emergency procedures, incident response and reporting, site safety rules and so forth.

63. WSC has also implemented a Drug and Alcohol policy and random testing program. Where a worker has been involved in an accident or incident at work, WSC now also requires drug and alcohol screening after this occurs. Self-testing is also available. WSC conducted awareness training to ensure that their workers understood their obligations to be fit for work. WSC now also includes drug screening as part of its pre-employment process.

64. “Safety Papers” have been developed to provide points of discussion for monthly yard meetings at all three Council depots. These safety papers are presented by WSC’s General Manager and designed to stimulate discussion about specific safety topics. There is a quiz component to be completed.

65. All operators of new items of plant are trained and inducted by company representatives during handover of new items of plant. All items of plant have a daily start-up checklist which must be completed prior to commencing work (Plant Daily Inspection Fault Report) and Safe Operating Procedures have been developed for each item of plant which are available in the plant cabin.

66. Further, new operators of plant are required to undertake at least 50 hours of training with a competent operator, which are entered into a logbook and signed off by the trainer. The new operator undertakes an assessment to be deemed competent to operate plant.

67. WSC introduced a SWMS for Traffic Control, a SWMS for Working with Moving Plant, and a SWMS for Pavement Construction in April 2019. WSC also introduced a Traffic Control at Work Site Location Checklist which is required to be completed on site with the approved TCP for the work being undertaken before the TCP is implemented.

68. Seven Automated External Defibrillators have been purchased for the three road crews, three depots and Council administration office. Forty five staff members have received training in their use.

2022 Floods

69. Walgett LGA was significantly impacted by the 2022 floods. In November 2022 the townships of Walgett, Collarenebri and Lightning Ridge were cut off, and urgent supplies had to be airlifted in. In December 2022, 40 percent of the LGA was affected by flooding. A damage assessment estimated that it would take 18 months for WSC to rectify damage done by the floods and the cost to complete this work was estimated to cost around $5 million. WSC received a $2 million upfront payment from TfNSW to undertake flood repairs and expects to receive further funding from the NSW State Government under the Regional and Local Roads Repair Program. As of January 2023, WSC understands it will receive $1 million in funding from this program, with the potential for further amounts to be awarded.

70. The floods have placed significant strain on WSC resources, with WSC providing support to emergency agencies. In light of the need to repair road infrastructure that was damaged during the floods, Mr Urquhart deposed that WSC will struggle to provide services to its residents for at least 12–18 months.

71. WSC employs 115 full time employees, 35 of whom work for Engineering Services, which is responsible for maintaining and repairing roads in the Walgett LGA. Engineering services is responsible for day-to-day road maintenance work and project road work. To date, WSC has undertaken works to repair damage caused by the November 2022 floods which have cost $280,000 as of 27 January 2023.

WSC 2022/2023 Budget

72. For the 2022/23 financial year, WSC has an annual general purpose income budget of $27.6 million. Only $6.06 million of this is derived from general council rates. The remaining $21.54 million is derived by way of grants, contributions, user charges and the provision of contracted services. Accordingly, WSC has minimal discretion in relation to the majority of its budget.

73. In addition, WSC has approximately $6.6 million in what Mr Urquhart refers to as “Working Capital”, made up of assets already purchased, net creditor/debtor liabilities, and unrestricted cash that is used to meet the Council’s operational financial requirements. WSC had, at 30 June 2022, approximately $288,000 in unrestricted cash. Relevantly, WSC’s assets including buildings and other structures, roads and stormwater drainage, require $6.608 million worth of work to them to bring them to the Council’s agreed level of service. WSC currently does not have the funds to do this work.

74. Mr Urquhart deposed that almost all of the $6.06 million derived from general council rates will be used by WSC to provide basic services to its residents, including the following:

1. Planning and building approvals.

2. Roads, parking, footpaths and transport.

3. Waste collection.

4. Water and sewer management.

5. Management of noxious weeds.

6. Stormwater drains.

7. Animal management.

8. Emergency management.

9. Sports and recreation facilities, parks, gardens and playgrounds and

10. Libraries.

75. After this expenditure, WSC has $1 million to spend on community programs, which primarily serve the Indigenous and youth populations within the LGA. For example, there are grass-roots programs which focus upon empowering Indigenous youth and counteracting intergenerational social disadvantage. For example, $385,000 of the community programs budget is spent on the Youth Centre, which provides many programs for First Nations youth. WSC’s youth programs have been recognised for 15 years in the NSW Government’s “Youth Week Awards”.

76. Mr Urquhart deposed that any fine imposed by this Court will be paid for from the WSC’s community services budget, given that it has very little discretion with the majority of its budget.

Enforceable Undertaking by TfNSW

77. TfNSW was initially prosecuted for a breach of the Act under ss 32 and 19(1) and ss 33 and 19(1) in relation to the death of a worker. That prosecution alleged a risk of serious injury or death to workers who were working on foot as a result of being struck by mobile plant. TfNSW entered an enforceable undertaking with SafeWork NSW and the charges were withdrawn.

78. In the enforceable undertaking, TfNSW set out the following strategies that would deliver benefits to the workplace, industry and community:

1. introduction of a Safety Leadership Summit for regional hubs;

2. introduction of a ‘safe working near traffic and safe handling and movement of plant awareness’ training package, with training provided to council-nominated employees;

3. community safety awareness campaign aimed at raising awareness of the vulnerability of workers at temporary work zones on roads and bridges;

4. establish and maintain a WHSMS;

5. ensure the WHS is audited by third party auditors;

6. to provide a copy of each finalised WHSMS audit report to SafeWork NSW; and

7. to implement the recommendations from these audits.

Proposed Work Health and Safety Order

79. SafeWork NSW supports imposition of a project order on WSC, in the following form:

1. The defendant is to conduct a Briefing Session for representatives of NSW Local Councils.

2. The defendant will hold two separate sessions to maximise attendance.

3. All material prepared for the presentation must be reviewed and approved by SafeWork.

4. The Briefing Session must:

1. provide an outline of the incident and why it is necessary to implement the system of work for the Switch;

2. address and explain the system of work designed and introduced by the defendant to perform the Switch;

3. provide and make available to attendees of the Briefing Session documentation describing the system of work for the Switch, including a Work Procedure for the Switch, plans for the Switch and a checklist for the Switch; and

4. provide contact information for a competent trainer to conduct training to road construction workers on the system of work for the Switch.

5. Within 30 days of this Order and then for a period of 12 months, the defendant is to:

1. provide a link on its public website to allow any person to make a request of the defendant for the information as stated above at paragraph [d];

2. provide the above information stated above at paragraph [d] to any person requesting this information, provided that such a person represents an organisation that conducts road construction work in NSW;

3. keep a record of all people who are provided with the information as stated above at [d].

6. Within 90 days of this Order, the defendant is to send a letter to each General Manager of all NSW Local Councils inviting their representative to attend the Briefing Session.

7. The letter from the defendant must provide a minimum of 60 days’ notice to each General Manager of the time, date and location for the Briefing Session.

8. The time, date and location of the Briefing Session will be agreed by SafeWork NSW but must take place no less than 180 days from the date of this Order.

9. For a period of 12 months from the date of this Order, the defendant is to keep a record of key actions it has taken to comply with this Order and then provide these records to SafeWork NSW.

10. All records provided to SafeWork NSW in accordance with this Order will have any personal information of people outside the employment or engagement of the defendant redacted.

80. As part of its enforceable undertaking with SafeWork outlined above, TfNSW is running a state-wide “Safety Leadership Summit” (the Summit) in October 2023, as well as regional Summits in May and June 2023. Mr Urquhart proposed that WSC provide Briefing Sessions to present the changes that it has made to its system of work for the Switch at the Summit to Alistair Lunn, Director West for TfNSW, to which Director Lunn agreed. Mr Urquhart suggested to Director Lunn that Mr Wear conduct the Briefing Sessions.

81. WSC plans to prepare and record a video presentation with Mr Wear for the regional Summits, and then present in-person at the state-wide Summit. Lisa Moore, the Director of Project Management for TfNSW, also supported WSC’s proposal and suggested that the recorded presentations also be shown at future sessions with other Local Councils which are to be held in late 2023.

82. The cost of conducting the Briefing Sessions for WSC is estimated to be $20,000–$30,000.

Consideration

83. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

84. The offence involves some objective gravity.

85. The risk of a worker being struck by mobile plant or a motor vehicle while working on foot on a roadway where roadwork was being performed was obvious and well-known to the offender.

86. The offender had in place a substantial safety system. A number of parts of the system were reviewed by the RMS, as was required by the contract governing the work.

87. The offender had developed and implemented the TCP to manage the risk at the worksite. The offender had developed the WOFP but failed to implement it in a way that provided any real protection to the workers who were required to work on foot in the vicinity of operating mobile plant. The offender failed to provide its workers with the RMS Workers on Foot Training. Further, the offender failed to consider what control measures were necessary during the Switch. This involved a failure to identify where there was a gap between the protection provided for by those two policies.

88. The likelihood of the risk coming home was low. The TCP was effective in removing the risk and the Switch occurred infrequently.

89. The steps that could have been taken were relatively simple and inexpensive. Those steps included the delineation of the areas in the WOFP, the use of a spotter and the requirement that the Site Marshall be solely dedicated to those duties while the Switch was in progress.

90. The consequences of the risk if it came home, included a risk of death.

91. I have taken into account the maximum penalty for the offence.

Deterrence

92. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

93. There is also a need for specific deterrence. The offender is required to perform roadwork and it is likely that it will continue to undertake similar projects for the RMS. These projects involve a potential for workers to be put at risk. On the other hand, the offender has taken steps to improve its safety system and has undertaken to educate other councils on the risks posed by the Switch.

Aggravating Factors

94. There are no relevant aggravating factors.

Mitigating Factors

95. The offender did not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

96. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by its actions to improve its safety systems that it has good prospects of rehabilitation.

97. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Urquhart, on behalf of WSC, expressed an apology for its breach of the Act.

98. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The plea was entered after the hearing had commenced but before any witnesses were called. The Court was about to sit in Coonamble to take evidence from the lay witnesses. The appropriate discount is 10%.

Other matters

99. The offender’s evidence demonstrated that most of its expenditure is dictated by the provider of funding and by commitment of funds to existing and future projects. The offender did not contend that it did not have the capacity to pay a fine, but rather that it had limited funds that it could use to pay a fine and that any funds used to pay a fine would cease to be available to pay for services to benefit the community. Mr Urquhart’s evidence was that the easiest place to cut discretionary spending, and thereby fund the payment of fine, was in the provision of community services especially those supporting young people and First Nations people.

100. The offender’s evidence also demonstrates that drought and flooding in recent years have significantly impacted the community serviced by the Council. This has increased demand for the services usually provided by the Council, that are yet to be fully funded.

101. I am satisfied that these matters justify the imposition of a lower fine than would have been appropriate in a commercial setting.

Penalty

102. Walgett Shire Council is convicted.

103. The appropriate fine is one of $55,000 that will be reduced by 10% to reflect the plea of guilty.

104. I impose a fine of $50,000.

105. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

106. I make a Work Health and Safety Project Order pursuant to s 238 of the Act in the following terms:

1. The defendant is to conduct a Briefing Session for representatives of NSW Local Councils.

2. The defendant will hold two separate sessions to maximise attendance.

3. All material prepared for the presentation must be reviewed and approved by SafeWork.

4. The Briefing Session must:

1. provide an outline of the incident and why it is necessary to implement the system of work for the Switch;

2. address and explain the system of work designed and introduced by the defendant to perform the Switch;

3. provide and make available to attendees of the Briefing Session documentation describing the system of work for the Switch, including a Work Procedure for the Switch, plans for the Switch and a checklist for the Switch; and

4. provide contact information for a competent trainer to conduct training to road construction workers on the system of work for the Switch.

5. Within 30 days of this Order and then for a period of 12 months, the defendant is to:

1. provide a link on its public website to allow any person to make a request of the defendant for the information as stated above at paragraph (d);

2. provide the above information stated above at paragraph (d) to any person requesting this information, provided that such a person represents an organisation that conducts road construction work in NSW;

3. keep a record of all people who are provided with the information as stated above at (d).

6. Within 90 days of this Order, the defendant is to send a letter to each General Manager of all NSW Local Councils inviting their representative to attend the Briefing Session.

7. The letter from the defendant must provide a minimum of 60 days’ notice to each General Manager of the time, date and location for the Briefing Session.

8. The time, date and location of the Briefing Session will be agreed by SafeWork NSW but must take place no less than 180 days from the date of this Order.

9. For a period of 12 months from the date of this Order, the defendant is to keep a record of key actions it has taken to comply with this Order and then provide these records to SafeWork NSW.

10. All records provided to SafeWork NSW in accordance with this Order will have any personal information of people outside the employment or engagement of the defendant redacted.

107. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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Decision last updated: 24 March 2023